Institute for Justice

Kelo Ruling Marks 5-Year Anniversary Wednesday

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Press Release | June 22, 2010

Vice President for Communications

Arlington, Va.—Kelo was the U.S. Supreme Court ruling that became the property rights shot heard ’round the world. Wednesday marks its fifth anniversary.

In the merely five years since that infamous ruling, the vast majority of state legislatures, many state supreme courts and the public itself have acted to limit Kelo, which took away the homes of seven New London, Conn., families for private development and sparked a nationwide backlash against eminent domain for private gain.

And what now stands on the land where 75 homes once stood around Susette Kelo’s little pink house? Nothing but barren fields, weeds and feral cats. Ten years lost and more than $80 million in taxpayer money spent. Even Pfizer, which received massive corporate welfare to move to New London and sparked the abuses of eminent domain, has now announced that it will close its research and development headquarters and leave New London.

These dramatic changes are addressed in a new report issued today by the Institute for Justice: “Five Years After Kelo: The Sweeping Backlash Against One of the Supreme Court’s Most-Despised Decisions,” available at: www.ij.org/KeloAt5. IJ also created a brief video (available at www.ij.org/KeloAt5Video) outlining the successes in the five years since the Kelo ruling.

“For property owners nationwide, Kelo remains the classic example of losing the battle but winning the war,” said Scott Bullock, an Institute for Justice senior attorney who argued the case on behalf of the homeowners. “After the Supreme Court completely abdicated its role as guardian of rights under the U.S. Constitution, there has been an unprecedented public revolt against the decision in terms of public opinion, citizen activism, legislative changes, state court decisions and lessons learned from the New London debacle. More work needs to be done, but the results of the Kelo backlash have been striking. The Institute for Justice used to get continual requests for assistance in fighting eminent domain for private gain. Now, we receive far fewer and, of those, many are defeated by activism in the court of public opinion before they ever reach a court of law.”

In the five years since Kelo was handed down:

• 43 states have passed either constitutional amendments or statutes that reformed their eminent domain laws to better protect private property rights. Although the quality and type of reform varies, the bottom line is that virtually all of the reforms amount to net increases in protections for property owners faced with eminent domain abuse. (For a state-by-state grading of all state eminent domain reforms, see: http://castlecoalition.org/57.)

• Nine state high courts restricted the use of eminent domain for private development while only one (New York) has so far refused to do so.

• Kelo educated the public about eminent domain abuse, and polls consistently show that Americans are overwhelmingly opposed to Kelo and support efforts to change the law to better protect property rights. Among the most-recent surveys was one conducted by the Associated Press, which found 87 percent of respondents said government shouldn’t have the power of eminent domain for redevelopment, 75 percent opposed government taking private property and handing it over to a developer, and 88 percent of respondents said property rights are just as important as freedom of speech and religion.

• Citizen activists defeated at least 44 projects that sought to abuse eminent domain for private gain in the five-year period since Kelo.

“This significant public opposition to eminent domain abuse led to a complete change in the public’s view on this issue,” said Christina Walsh, IJ’s director of activism and coalitions. “Although public officials, planners and developers in the past could keep condemnations for private gain under the public’s radar screen and thus usually get away with the seizure of homes and small businesses, that is no longer the case.”

“One of the other reasons for this fundamental shift in eminent domain policy has been the response of state courts to Kelo,” said Dana Berliner, an IJ senior attorney and co-counsel in the Kelo case. “When the U.S. Supreme Court decided not to correctly interpret the U.S. Constitution, the state high courts began to fill that void. For example, the courts in Hawaii, Ohio, New Jersey and Pennsylvania—all states that used to regularly abuse eminent domain—each decided that, unlike the U.S. Supreme Court, they would closely scrutinize municipal takings and prevent unconstitutional abuses.”

There is one significant exception to this good news for property owners in state courts—New York. The Court of Appeals (New York’s highest court) routinely ignores evidence of eminent domain abuse, refusing to give the facts any real scrutiny. The Court of Appeals does have a chance to redeem itself in another challenge to a completely trumped-up claim of blight, combined with concealment of relevant evidence, in another case currently pending before it involving the use of eminent domain to expand Columbia (a private university) in Harlem. New Yorkers can only hope the Court of Appeals will remove its head from the sand before reaching its final decision.

“Even though the Fort Trumbull neighborhood was lost, Susette Kelo’s little pink house, where this fight all began, still stands, now in downtown New London about one mile away from Fort Trumbull,” said Chip Mellor, president and general counsel of the Institute for Justice. “Like Betsy Ross’ house in Philadelphia and Paul Revere’s home in Boston, Susette Kelo’s pink cottage stands as a monument to her and her neighbors’ struggle, one that has changed this nation for the better.”